Current Trends In The Adjudication Of Waivers Of The Foreign Residence Requirement Under INA Section 212(e) On The Grounds Of "Exceptional Hardship" To A U.S. Citizen Family Member

Due to recent changes in the USCIS procedure for adjudicating hardship and persecution waivers of the foreign residence requirement of 212(e), it now seems a timely exercise to address this subject and provide practitioners with some information on current trends. In late 2006, the USCIS announced that all I-612 hardship and persecution waivers would be adjudicated by the California Service Center (CSC), and that pending applications in other Centers would be transferred to the CSC. The CSC then began to deny nearly every application, confounding the expectations of applicants and their representatives who had relied on past decisions to outline the parameters of "exceptional hardship" and apply relevant arguments to demonstrate this level of hardship. This unprecedented series of denials was broken after about a year of persistent appeals to the Administrative Appeals Office (AAO), and its subsequent sustaining of these appeals. Since the AAO remanded a large number of cases back to the CSC, the CSC seems to have adopted the AAO's interpretation of exceptional hardship, and has begun approving 212(e) waivers at a rate consistent with years prior to 2007.

II. Sample set of decisions rendered by AAO

Since the CSC does not produce written decisions articulating the reasoning behind its approvals, it is impossible to make an assessment of the standard it applies in adjudicating hardship waivers by reviewing decisions of the first instance. The most accessible representation of the controlling standard for evaluation of hardship claims can be found in the written decisions of the AAO. Fortunately, the USCIS.gov website has posted many of its recent decisions, providing a sample set large enough to make meaningful conclusions about what amounts to "exceptional hardship" for a 212(e) waiver.

For the purposes of this article, I chose to review all of the AAO decisions for the year 2008. I selected this year for the obvious reason of examining the most current trends in hardship waiver adjudication, and 2008 is particularly significant because it is the year in which many of the cases erroneously denied by the CSC in 2007 were reviewed by the AAO. Thus, a close inspection of the AAO's reasoning should prove to be a valuable insight into the contours of a successful hardship waiver application. At the time this article was written in February 2009, the USCIS had only posted to its web site AAO decisions on hardship waivers through November of 2008, and it is not clear if and when any December 2008 decisions will be posted. There were a total of 114 hardship waiver decisions available, excluding those where the AAO did not address the substance of the hardship argument.1 Of these appeals, 76 were sustained, and 38 were dismissed. Each case involved most, if not all, of the typical hardship arguments including existing and potential medical problems, concerns about delays in a USC child's educational and social development, dangerous country conditions, psychological stress, and financial hardship. A review of each of the arguments addressed by the AAO in its decisions revealed some distinct patterns, which I will describe in the next section.

III. Significant trends

a) The AAO recognizes the hardship USC family members would endure in countries experiencing civil unrest and manifestations of anti-American sentiment

The most consistent pattern in 2008 AAO decisions on hardship waivers is its recognition of the danger to U.S. citizens (USC) in countries experiencing civil unrest and in countries where there is a significant level of anti-Americanism. The opinions demonstrated a substantial deference to information provided by the U.S. State Department such as Travel Warnings and Consular Information Sheets. Appeals of cases involving USC children of two foreign national parents that presented plausible arguments about the risk of physical violence to the children were uniformly sustained. Applicants from countries such as Pakistan and Lebanon were the primary beneficiaries of the AAO's assessment of the risk of physical harm to USC family members, as well as applicants from other countries in South Asia, the Middle East, South America, and Africa. The AAO's acceptance of arguments about such threats informs us as practitioners that it is important to include evidence about dangerous country conditions where relevant, especially when representing an applicant with USC children and a foreign national spouse.

Cases involving a USC or LPR spouse continue to be the most challenging, as the applicant must prove that the USC or LPR family members would experience exceptional hardship if they relocated to the applicant's home country, and that they would experience exceptional hardship if they remained in the United States while the applicant spent two years abroad. There were, however, some encouraging trends with these types of cases, and the following two patterns were the most consistent:

b) Spouses with nonimmigrant visas are not equivalent to USC or LPR spouses under the two-pronged analysis of exceptional hardship

There had been some lack of clarity in the adjudication of hardship waivers involving a J-1 applicant with an H1-B spouse and USC children. The CSC had maintained that the H1-B spouse is equivalent to a USC or LPR for the purpose of addressing the possibility of a USC child remaining in the United States with the parent in H1-B status. In other words, it was not enough to prove that the children would experience exceptional hardship in the home country of the parent subject to 212(e), but also that they would endure exceptional hardship if they remained in the United States with their parent in H1-B status. The AAO, however, agreed with our position that the CSC was incorrectly interpreting the law in such cases, stating in one decision that, "The AAO concurs with counsel that due to the applicant's spouse's nonimmigrant status and its temporary and revocable nature, it has not been established that the children would be able to remain in the United States during the two-year period that the applicant has to return to Lebanon. As such, were the applicant's spouse required to depart the United States at some point in the future, such a predicament would leave the young children in the United States without their parents. By default, this situation would constitute exceptional hardship to the applicant's children."2 The AAO consistently applied this interpretation to other cases as well, with the notable exception of one case in which the applicant's spouse was in H1-B status, but neither the applicant nor his attorney asserted this argument about the H1-B spouse's conditional presence in the United States. Since the AAO is prepared to accept this argument if it is presented, it is clearly necessary to explicitly pose this argument in any case involving these facts.

c) The AAO recognizes the hardship that young USC children would experience if they were separated from their mother

Despite the relatively small sample of cases reviewed and the lack of access to the full contents of the submitted application and appeal, it was also possible to detect the adjudicators' assumption that young children would necessarily experience exceptional hardship without their mother, but not necessarily without their father. In a number of cases, the AAO addressed this concern explicitly when examining the possibility of an applicant who is the mother of USC children returning to her home country and leaving the children behind with the father. Such decisions enumerated the arguments presented and attributed varying degrees of weight to each, concluding with language such as, "the psychological ramifications of separating a young child from his mother for a two-year period would cause the child exceptional hardship."3 Given the AAO's documented recognition of the grave consequences of such a separation, it is clearly important to document the psychological hardship USC children would endure in a case with this fact pattern. More importantly, in cases in which the applicant is the father of USC children, counsel should make special efforts to emphasize and support with very persuasive evidence the psychological hardship that the children would experience if their father were required to leave the country for two years.

IV. Conclusion

The trends described above represent what I see as the most consistent and obvious trends in the articulation of the "exceptional hardship" standard for 212(e) hardship waivers in the relatively small sample set of decisions rendered in 2008. Hopefully, the USCIS will continue to post AAO decisions on its website so practitioners can follow the evolving interpretation of this standard and so they can identify other consistencies that may emerge as more decisions become available to the public. We will certainly continue monitoring developments in this area and will report on any detectable and useful patterns.

End Notes

1Generally, these were cases in which the AAO found that the applicant was never subject to the foreign residence requirement or in which the applicant had secured a 212(e) waiver by other means while the hardship waiver was still pending.